1. This is an appeal from the decree of the Subordinate Judge of Chingleput in a matter wherein the claimant, the respondent to the present appeal, is claiming compensation under the Land Acquisition Act for the acquisition by Government of 377' 55 acres of land. As to 366 acres 23 cents the claimant has melwaram rights. As to the remaining 11 acres 32 cents the claimant claims as owner of the land. Of this land 11'32 acres are burdened by ponds, and 3 acres 50 cents are burdened by roads or pathways. The lands are all situate in Mambalam village and the notification is dated, 25th May 1920 which is before the passing of the Amending Act of 1923, so that the critical date in determining the market value of the rights acquired is the date of the notice under Section 6 which is 25th May aforesaid. The land acquisition officer, as to the item for roads and pathways, has allowed nothing for the reason, stated by him at pp. 11 and 12 of the pleadings, that the pathways are in public use and are to be used for the public. As regards the kuttais or ponds he finds that when they are silted up the zamindar, the claimant herein, has been granting them on patta. He accordingly awards compensation at varying rates: for S. No. 70/4 and 86, Rs. 450 an acre and for S. No. 106/1-A and 1-0, 114/1 and 131/24 at Rs. 500 an acre. S. No. 109 being on a higher level he values it at the same rate as the adjoining fields less Rs. 200 an acre, that is at Rs. 1,000 an acre. As regards the melwaram rights he takes the estimated annual value, but deducts the out goings and gives 20 years' purchase. The Subordinate Judge largely increased this award and valued pathways at Rs. 2,700 an acre, the ponds at Rs. 2,250 an acre; and as to the melwaram rights, as to three quarters of the area he gave the same; as to one quarter he held that these were building sites and fixed the value at what he calls the mean between the maximum and the minimum rates, viz. Re. 1-8-0 per ground.
2. Before examining the law and the evidence in this case it is desirable to advert to the form in which the claim is framed. By letter dated 4th December 1923 a claim is put forward on behalf of the zamindar, then a minor, for compensation for all poramboke such as pathways, ponds, channels, etc., in the Mambalam zamindari. From this time onwards it appears quite clear that the claim in respect of rights in the land as distinct from melwaram rights over the land are made in respect of pathways and ponds in the area in question. It was urged before us that the true way of viewing this case was to take the market value of the whole area as land and deduct the value of interest other than that of the claimant and award the claimant the balance. In support of this proposition two cases, Rajah of Pittapuram v. Revenue Divisional Officer, Cocanada AIR 1919 Mad 222, at p. 646 of 42 Mad. and Rohan Lal v. Collector of Etah : AIR1929All525 All. et seq., were chiefly relied upon. It was urged that, if the principle laid down by these cases, which follows the decision in Collector of Belgaum v. Bhimrao (1908) 10 Bom. LR 657 : : (1908)10BOMLR657 , be followed one can regard the whole land as potential building sites, one can treat a pathway as adjacent to the land on either side of it so as to be saleable with the land on either side of it, and having arrived at that position one can say that the pathway has the same value as the land on either side of it and therefore that a pathway is a potential building-site. We see no reason to dissent from any of the observations made in the cases above mentioned; but those cases proceed on an entirely different set of facts and type of claim than is here made. Here a claim is made for compensation for the acquisition of three separate things: (1) land now used as pathways, (2) land now burdened with ponds, and (3) melwaram rights. We do not know what compensation has been paid to other persons admittedly interested in these separate things.
3. The three things are claimed for separately, evidence relating to them is taken separately, and there is no hint until the argument before us that the case was framed along the lines now indicated. We therefore decline to alter the nature of the claim at this stage and accordingly treat the claim as being in respect of three separate things. The result is that so far as the pathways are concerned one is concerned with a strip of land which from its very nature is not of a size or type that would render it likely to be marketable as a building site, quite apart from the question whether it is or is not burdened with an easement. As regards the ponds, we are concerned with claim for land covered by water and accordingly land that is not so likely to have a marketable value as buildings site as land not covered. As regards the melwaram rights, we are not concerned with land at all but with what is in effect a rent charge.
4. Before considering the evidence in this particular case, it may be desirable to indicate some of the principles which we conceive should be borne in mind when valuing land. And first we refer to the proposition first enunciated in In re Lucas and Chesterfield Gas and Water Board (1909) 1 K. B 16 and cited with approval in Cedars Rapids Manufacturing & Power Co. v. Lacoste AIR 1914 PC 199 at p. 576, viz.:
the value to be paid for is the value to the owner as it existed at the date of the taking, not the value to the taker; (2) the value to the owner consists in all advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined.
5. Secondly, in calculating the value of the land you do not take into account changes due to the acquisition but consider the land as it was prior to the acquisition. Thus, for example, if you find the land burdened by a public road, but acquired for a purpose that will abolish the road, so that the land when used for such a purpose ceases to be a road and becomes unencumbered land, yet since that condition is due to the acquisition that condition cannot be regarded. Examples of this latter principle can be found in Stabbing's case (1881)6QB42 and in the Privy Council decision of Manmatha Nath Mitter v. Secy. of State (1898) 25 Cal 194. In both these cases it was either held or indicated by way of example that a roadway that ceased to be a roadway as a consequence of the acquisition could not be treated as having at the time of the acquisition a market value was considered by the Full Bench in Rajagopala Naidu v. Ramasubramania Ayyar AIR1924Mad119 at p. 789(of 46 Mad.), where the English meaning, viz., the value that it would fetch in the market under the state of of things existing at the time, was adopted. This definition is consonant with the principle enunciated above. Thirdly, and as a branch of the rule that the value which has to be assessed is the value to the old owner who parts with his property and not the value to the new owner who takes it over, where the old owner takes the property subject to restrictions, it is necessary to inquire how far these restrictions affect the value. In determining the burden of the restriction one circumstance to consider is the chance of such a restriction being determined and it may therefore become a relevant subject of inquiry as to by whom the restriction can be determined. Two extreme cases can be put: (1) where the restriction can be determined at any moment (as in the case of a revocable license) by the claimant; and (2) where the restriction is imposed by an Act of Parliament for the benefit of the public generally. In the first case the restriction, though grave, would have practically no effect upon the value. In the second case the restriction, since it is one not likely to be removed, would burden the property to the full extent of the restriction.
6. Applying those principles to the facts of this case we find the circumstances are as follows: These pathways are not, save as one small pathway, given any separate paimash number. They appear to have been used by the cultivators of the fields or other occupiers of these lands for a great number of years. They are narrow, and, even if unburdened, quite unsuited from their shape for use as building sites. It is not established that the claimant can change the direction or close them or in any way remove the burden created by them. In these circumstances we find it difficult to see how they could have any value at all either as building sites or as agricultural land. On this point we accordingly restore the award of the land acquisition officer, As regards the ponds the position is somewhat different. There is evidence to show that in the past grants have been made by the zamindar of these ponds to the extent to which they have silted up; that is to say, there is evidence to show that the zamindar is under no obligation to maintain the ponds as ponds, and, if this be so, then the value to the zamindar of this part of the land is the value of the land less the cost which he would have to incur before he could make that land available for any productive purpose. This is the basis adopted by the land acquisition officer and we see no reason to disturb his findings and award on this head and accordingly restore it. Finally as to melwaram rights. It may well be that a preferable way of arriving at the melwaram rights would have been to value the land over which these rights extend as land in a contest between the acquirer and all the persons whose rights were acquired, assigning to each interest its several proportion of the compensation given. This however has not been done and cannot now be done. We must therefore arrive at such a figure as we best can, not in the manner above Indicated, but by taking the melwaram rights as a separate species of property or interest in land within the meaning of the Land Acquisition Act, that is, as a separate marketable interest in land. What is the marketable value of melwaram?
7. In our opinion it is that sum which that melwaram would fetch in the open market. In determining that figure we think that the fundamental question is how much is the melwaram? That question is the one which the land acquisition officer put to himself at p. 12 and he found it to be the admitted present figure of Rs. 1,020-6-5. He found that the peishkush on that sum payable was Rs. 413-11-7, and the net income accordingly was Rs. 606-10-10. Subject to one correction hereafter to be mentioned, this appears to us to be the correct method of determining the value of this right. As however an entirely different method of valuing this right was strongly pressed before us and was accepted by the Subordinate Judge, we consider shortly the alternative method of assessing the compensation put forward, It is, so far as we understand it, as follows:
8. The zamindar claims that when land over which he has melwaram rights is occupied as building-site, he is in the habit of charging an extra ground rent of Re. 1 per ground for the land actually built upon and he averages that area at a quarter of the total area. That is to say, if four grounds are granted as building site, one ground will be occupied by the house and for that ground he gets Re. 1. The remaining three grounds, though within the ambit of a building-site, are treated for this purpose as agricultural land. This, as we understand, is the case put forward on his behalf and is certainly the case which is supported by the evidence led on behalf of the claimant. It is not the test which appears to have been accepted by the Subordinate Judge who appears to have treated building sites as falling within two categories (1) those on which a building was put up, which he takes the ground rent at the rate of a rupee per ground for the whole site and (2) those which were granted as building-sites but kept vacant, in which he takes the rate at half a rupee. He accordingly treats the two limits at Re. 1 and half a rupee as the maximum and minimum for the whole area, thus assuming (1) that the whole area is a building-site and (2) that the rupee is charged not over the area occupied by the building but over the whole area sold as a building site. We do not consider it necessary further to examine this part of the case excepting to say that we find no reason to show why, apart from the Mambalam building scheme (which is an element we are not entitled to take into consideration), the particular area should be regarded as though it were a building site. It had not hitherto been built upon to any extent.
9. It is however a matter for consideration whether, consonant to the principles above enunciated, some allowance should not be made for the possibility of a portion of this area within a reasonable period becoming a building site, even apart from the land acquisition purpose. From the very nature of the case one can only roughly calculate the prospects. There is some evidence that this area was so situate as to make it possible that within a reasonable period some of it would become a building site. Bearing this fact in mind we are prepared to regard one quarter of it as potential building site and three quarters of it as agricultural land. This will increase the award of the land acquisition officer under this head by an amount. We estimate that this, in the zamindari's own method of calculation, would give him an increased income of Rs. 349 which at 20 years' purchase amount to a capital sum of Rs. 6,980.
10. There remains the question raised as to whether there was here a sufficient specific claim for the purposes of Section 9, Land Acquisition Act. If not, it is urged that Section 25(2) prevents the award exceeding the amount awarded by the Collector. The point only relates to the claim for paths and ponds and accordingly does not now arise. In the result the appeal is allowed, and the land acquisition officer's award increased by the sum of Rs. 6,980 is restored. Costs will be proportionate in both cases in both Courts. Appeal No. 77 of 1930 is dismissed with costs. The statutory increase of 15 per cent will be allowed on the Rs. 6,980. Interest at 6 per cent allowed on the total increase from date of the land acquisition officer's award. Same statutory percentage and interest will be allowed on the increase if any found due in 365/1929.